ConCourt to hear Public Protector appeal on Bankorp costs ruling

The Constitutional Court is set to hear an application from Public Protector Busisiwe Mkhwebane against a ruling which requires her to pay, in her personal capacity, a portion of the South African Reserve Bank’s legal costs in the Bankorp matter.

The report included remedial action requiring Absa to repay the Reserve Bank R1.125-billion for what she termed a bailout to Bankorp during the apartheid era. The Reserve Bank and Absa in turn filed applications with the Pretoria high court to set aside the report, which it did.

Mkhwebane was ordered to pay 15% of the central bank’s costs in her personal capacity.
The remainder was to be paid by her office.

Mkhwebane unsuccessfully appealed this part of the ruling to the Supreme Court of Appeal. The matter has now reached the Constitutional Court.

In statement on Monday, the ConCourt said the Public Protector believes the court should not have directed costs to her. “The Public Protector argues that the procedure followed in the High Court in seeking the costs order against her was flawed an thus the costs order should not have been granted against her.”

“Further that the Public Protector is similar to a judge and is similarly indemnified from costs in her personal capacity for action taken in her official role as Public Protector.”

The Reserve Bank, meanwhile, has opposed the Public Protector’s appeal.

It has cross-appealed against a part in the high court judgement which dismissed its application to declare that Mkhwebane abused her office during her investigation which led to the report.